Immigration and Freedom

By Chandran Kukathas

A compelling account of the threat immigration control poses to the citizens of free societies

Immigration is often seen as a danger to western liberal democracies because it threatens to undermine their fundamental values, most notably freedom and national self-determination. In this book, however, Chandran Kukathas argues that the greater threat comes not from immigration but from immigration control.

Kukathas shows that immigration control is not merely about preventing outsiders from moving across borders. It is about controlling what outsiders do once in a society: whether they work, reside, study, set up businesses, or share their lives with others. But controlling outsiders—immigrants or would-be immigrants—requires regulating, monitoring, and sanctioning insiders, those citizens and residents who might otherwise hire, trade with, house, teach, or generally associate with outsiders. The more vigorously immigration control is pursued, the more seriously freedom is diminished. The search for control threatens freedom directly and weakens the values upon which it relies, notably equality and the rule of law. Kukathas demonstrates that the imagined gains from efforts to control immigration are illusory, for they do not promote economic prosperity or social solidarity. Nor does immigration control bring self-determination, since the apparatus of control is an international institutional regime that increases the power of states and their agencies at the expense of citizens. That power includes the authority to determine who is and is not an insider: to define identity itself.

Looking at past and current practices across the world, Immigration and Freedom presents a critique of immigration control as an institutional reality, as well as an account of what freedom means—and why it matters.

• Language: English
• Publisher: Princeton University Press
• Release date: Mar 16, 2021
• ISBN: 9780691215389

Book preview

IMMIGRATION AND FREEDOM

Immigration and Freedom

Chandran Kukathas

PRINCETON UNIVERSITY PRESS

PRINCETON AND OXFORD

Copyright © 2021 by Princeton University Press

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Library of Congress Cataloging-in-Publication Data

Names: Kukathas, Chandran, author.

Title: Immigration and freedom / Chandran Kukathas.

Description: Princeton : Princeton University Press, [2021] | Includes bibliographical references and index.

Identifiers: LCCN 2020026318 (print) | LCCN 2020026319 (ebook) | ISBN 9780691189680 (hardback) | ISBN 9780691215389 (ebook)

Subjects: LCSH: Emigration and immigration—Social aspects. | Emigration and immigration—Government policy. | Liberty.

Classification: LCC JV6225 .K84 2021 (print) | LCC JV6225 (ebook) | DDC 304.8–dc23

LC record available at https://lccn.loc.gov/2020026318

LC ebook record available at https://lccn.loc.gov/2020026319

Version 1.0

British Library Cataloging-in-Publication Data is available

Editorial: Ben Tate and Josh Drake

Production Editorial: Kathleen Cioffi

Jacket Design: Karl Spurzem

For Christine

It is seldom that liberty of any kind is lost all at once.

—DAVID HUME, ‘OF THE LIBERTY OF THE PRESS’

I should have loved freedom, I believe, at all times, but in the time in which we live I am ready to worship it.

—ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA

CONTENTS

Preface iii

1 Panoptica 1

A Modern Panopticon 1

The Apotheosis of Nationality 6

The Structure of the Book 8

2 Immigration 10

The Problem of Definition 12

Immigrants and Natives 14

Nationality: The Return of the Native 19

Borders and Border Control 27

Open and Closed Borders 33

Immigration 38

3 Control 41

Making Life Harder 41

Checkpoint Controls 43

Immigration Law and Social Control 53

Surveillance and the Socializing of Immigration Control 70

South Africa and the Control of (Internal) Migration 78

Taking Back and Giving Up 85

4 Equality 87

Uncompromising Equality 87

Understanding Immigration Control 90

Immigration Control and the Rule of Law 96

Race and Equality 109

Sex and Equality 118

Equality and Freedom 122

5 Economy 125

Economic Questions 125

The Economic Case for Immigration Control 128

The Economic Costs of Immigration Control 158

The Economics of (Intergenerational) Identity 164

6 Culture 167

The Cultural Caveat 167

The Cultural Argument for Immigration Control 168

The Value of Culture 173

Making Sense of the Cultural Defence of Immigration Control 176

The Corporate Conception of Nations 184

7 State 185

Our Home, Our Family 185

National Identity, Territory, and Self-determination 188

Ancestral Voices 194

This Land is Your Land, This Land is My Land 201

Consider Yourself … One of Us 209

The State 214

Taking Back Control 224

We 229

8 Freedom 231

Abandoned Roads 231

Control 232

Freedom 242

Immigration and Freedom 252

Epilogue: Imagine If You Needed a Visa to Fall in Love 259

Acknowledgements 261

Notes 263

Works Cited 313

Index 337

PREFACE

Books, like nations, have their histories. Such histories, when given expression, serve the purposes of their authors, who write them with an eye to their audiences. Histories are exercises in persuasion.

The origins of this book lie in two of its author’s concerns. The first is political. As someone sceptical about the pretensions of the modern state, I have long been troubled by its claims to control the movement of people, and even more bothered by the consequences of its exercise of the power to do so. The second is philosophical. As a political theorist, I have for some time been unsatisfied by the contributions of philosophers writing about immigration given their preoccupation with the question of whether states have the ‘right to exclude’, or with the obverse question of whether people have a ‘right to move’.¹ The philosophical concern explains why this book addresses the question of immigration differently. The political concern accounts for the kind of answer it offers.

That answer is not an argument for ‘open borders’—sympathetic though I am to that ideal. There are plenty of works putting such a case, whether by arguing for the rights of people to move freely or against the claims of states to exclude them. I share with many of these authors an interest in free movement; but my purpose in this book is to address the question of freedom as a more fundamental concern.

It is often said that immigration is something of which we should be wary, particularly in the countries of the liberal democratic west, because the movement of peoples from other parts of the world threatens to transform our society and to undermine its fundamental values. Pre-eminent among these values are freedom and equality. The argument of this book is that the threat to freedom comes not from immigration but from immigration control. The logic here is not difficult to grasp. Immigration control is not merely about restricting border-crossing but as much, if not more, about constraining what outsiders might do once they have crossed the border into a society. But it is difficult to control outsiders without also controlling insiders, since insiders are all too ready and willing to hire, teach, rent to, trade with, marry, and generally associate with outsiders. Moreover, insiders and outsiders are not readily distinguishable unless there are instruments of control in place to identify one or the other. Indeed, immigration control begins with the very process of distinguishing nationals from immigrants, natives from foreigners—insiders from outsiders. This means settling a philosophically unsettleable question: who, or what, is a native or a national—an insider or an outsider? In the end, the question tends to be answered not philosophically but politically, and the answer, almost invariably, is that the outsiders are those that political authorities wish to keep out—to define as (would-be or potential) immigrants. Immigration control is as much the means of determining who are nationals as it is a way of protecting them from those who are not. Immigration control is, in a more fundamental sense than is usually appreciated, entirely about identity politics.

Immigration control is usually defended by the proponents of the principle of nationality on the grounds that the interests of our fellow nationals should take precedence over the interests of foreigners. The trouble is, in reality, the politics of immigration control begins with the conflict over who are the nationals and who are the foreigners. And to the extent that political settlements are reached about whether and how many foreigners should be allowed to immigrate, they reveal nothing more than that some of the interests of some of our compatriots are served, despite the objections or reservations of others among them. The conflict over immigration, in the end, is a conflict not between the interests of insiders and outsiders—or nationals and foreigners—but between the various interests found within a society. This conflict has turned into a particularly destructive one because, as the immigration issue has been cast as an existential challenge to the integrity of states, so has the response been to develop solutions that threaten to do greater damage still to the institutions and values that make them hospitable places in which to live.

To show this requires a philosophical argument that builds both on a certain amount of necessary conceptual analysis, as well as a theoretical account of legal and political processes. This book differs from other studies of the political theory of immigration not only in its main line of argument but in another important respect. It approaches the immigration issue guided by a conviction that the philosophical question is best addressed on the basis of a deeper appreciation of the empirical reality of immigration—as a phenomenon to be understood in historical, institutional, and broadly legal and sociological terms. While there is an important place for purely philosophical investigations, that is not enough if immigration is really the subject. A philosophical examination of, for example, the question of whether immigration restrictions are ‘coercive’, might, if done well, tell us a great deal about how to understand ‘coercion’, but not very much about immigration restrictions unless it includes some consideration of the institutions and practice of immigration control. While I have engaged with philosophers and political theorists, I have drawn more extensively on the work of historians, political scientists, anthropologists, lawyers, and sociologists. The moral and political questions related to immigration cannot be addressed adequately without an acknowledgement of immigration’s complexity and variability—and indeed of the difficulties that arise even when one tries to identify the phenomenon. Immigration is, after all, a concept we use to describe an aspect of the world of human affairs; but human beings do not always act with our concepts in mind. Sociologists and lawyers have grappled with this problem in work that has much to contribute to discussions of immigration in political theory,² just as political scientists and historians have helped us understand what immigration, and immigration control, look like. Taking this approach, drawing more freely on empirical social science than is usual in a work of political theory, has made this book longer than I originally intended. My hope is that this decision has paid off.

My aim in this inquiry, ultimately, is not to advance a set of solutions to the immigration questions we confront but rather to invite the reader to think through the issue in the way I have presented it. In essence, it draws out the implications of immigration control for values many people say they cherish, and asks that we consider whether the price of control is worth paying. It does not describe a possible world in which immigration controls have become negligible or insignificant—much less tell us how to get there—and it is, on the whole, less than sanguine about the immediate prospects of freedom.

David Hume, before finally publishing his Treatise of Human Nature, was criticized by Francis Hutcheson for his work’s ‘want of warmth in the cause of virtue’. He responded by insisting that he was a moral ‘anatomist’ and not a moral ‘painter’. I have aimed in this work to be more of the former, though I hope the reader will also find in its pages some evidence of the latter. The epilogue to the book is a final effort to redress any imbalance.

1

Panoptica

There was of course no way of knowing whether you were being watched at any given moment.

—GEORGE ORWELL, NINETEEN EIGHTY-FOUR

‘Don’t look at him!’ he snapped, without noticing how odd it was to speak to free men in this way.

—FRANZ KAFKA, THE TRIAL

Borders have guards and guards have guns.

—JOSEPH CARENS, ‘ALIENS AND CITIZENS’

A Modern Panopticon

Immigration controls are restrictions on individual freedom. In debates about immigration, however, freedom is rarely mentioned. When it is raised it is usually indirectly, and the contending parties typically divide into those who question the wisdom or the morality of limiting the movement of would-be immigrants and others who think such restrictions warranted. The language of freedom does not make much of an appearance, perhaps because the liberty of foreigners or aliens does not really interest most people. Those who favour immigration commonly express a concern for the welfare of outsiders; others, who would rather such people did not immigrate, appeal to the welfare of natives and the integrity of the nation as the things that really matter. Freedom is never itself the issue.

The point of this book is to put freedom at the centre of the immigration question. At stake are the liberty of citizens and other residents of the free society, and therefore the free society itself. To put it simply, immigration controls are controls on people, and it is not possible to control some people without controlling others. More to the point, it is not possible to control outsiders (aliens, foreigners, would-be immigrants) without controlling insiders as well. Immigration controls are not merely border controls but controls on the freedom of the population residing within those borders. The purpose of this work is to show why this must be so, and to explain why it is significant. The conclusion it defends is that if we value freedom—as we should—we ought to be wary of immigration control.

This conclusion is unlikely to be a popular one. Even within the academy, which is on the whole sympathetic to freedom of movement, few find the idea of much more open immigration either attractive or plausible. Among the general population in modern liberal democracies, most think immigration should be limited, and significant numbers argue that it should be substantially reduced. To advocate a reduction, let alone the removal, of immigration controls in such circumstances would therefore seem to many a slightly quixotic, if not entirely preposterous, endeavour. Nonetheless, I think it is important to make the case. This work is not so much a defence of ‘open borders’ as an invitation to think through the implications of immigration control, even if it nonetheless recognizes that scepticism about immigration control has largely been expressed by advocates of open borders.¹ In the end, what I hope to show is that we have very good reason to take the idea of more open immigration seriously by bringing its detractors to acknowledge the heavy price we must pay to keep our borders controlled.

That price, I should say at the outset, is not an economic one. While economic considerations are not unimportant (and will be addressed in due course), the point here is not to advance the economic case for freedom of movement. It is rather to explore the relationship between open immigration and the free society. This is, in the end, an essay on the nature of a free society.

If there is a passage anywhere that captures the spirit of the argument that will unfold in these pages it is the funeral oration delivered by Pericles in Thucydides’s History of the Peloponnesian War, reminding his fellow Athenians of what it means to live in a free society. There he said:

The freedom which we enjoy in our government extends also to our ordinary life. There, far from exercising a jealous surveillance over each other, we do not feel called upon to be angry with our neighbour for doing what he likes, or even to indulge in those injurious looks which cannot fail to be offensive, although they inflict no positive penalty. But all this ease in our private relations does not make us lawless as citizens.²

It is true, Pericles boasts, that ‘the magnitude of our city draws the produce of the world into our harbour, so that to the Athenian the fruits of other countries are as familiar a luxury as those of his own’. But this is also possible because: ‘We throw open our city to the world, and never by alien acts exclude foreigners from any opportunity of learning or observing, although the eyes of an enemy may occasionally profit by our liberality; trusting less in system and policy than to the native spirit of our citizens.’³

To draw inspiration from this passage is not to hold up the slave-dependent polis of ancient Athens as a model for modern society, or to buy uncritically into Pericles’s rosy portrait of his city. Indeed, the historical Pericles was himself hardly an advocate of equality for immigrants and had been the architect of a system of restrictions on the rights and freedoms of non-Athenians. Plutarch recounts that upon being chosen once again by the Athenians to lead them as a general, Pericles asked that the law ‘concerning base-born children, which he himself had formerly caused to be made, might be suspended; so that the name and race of his family might not, for want of a lawful heir to succeed, be wholly lost and extinguished.’ That law, which Pericles had introduced in 451 BCE, provided that from then onward only children born of parents both of whom were Athenian could acquire citizenship.⁴ Still, this does not change the fact that the Athens of the day stood in plain contrast to the outlook of Sparta, whose practice of xenēlasia (the arbitrary and deliberately violent expulsion of foreigners or immigrants) was criticized by Pericles as inconsistent with the Greek way of thinking.⁵

The funeral oration resonates with the thesis of this book because it offers a reflection on what it means for a society to be free. The freedom to be prized is in some ways a very ordinary thing, consisting in not being hindered or obstructed in the pursuit of our everyday ends, or watched as we go about our business, or prevented from associating with others from whom we can profit or to whom we wish to show our liberality. It means being able to live as we please under laws that recognize the freedom of all to go about their own business, and able to relate to one another not under the terms set by a system or policy but simply as people of the city. It is to be at ease. By implication, at least on this reading of Pericles, living freely means living in a society that is open to the world—from which others are not excluded—and not waking each day in trepidation of the risks that openness might bring.

In restricting the movement of people today we have been too little aware of what it means for the way we live. We have trained our focus on the immigrant and have dwelt on the perceived dangers of bringing foreigners into the state, but have not given much attention to what it means to create a society that tries to close itself off (if only to a degree) from the outside world. Even advocates of open borders have given relatively little consideration to this matter. Joseph Carens famously opened his defence of freedom of movement with the observation that ‘borders have guards and guards have guns’.⁶ His point was that violence is threatened or inflicted upon would-be immigrants, and that the power of the state when exercised to keep out ‘ordinary, peaceful people seeking only the opportunity to build secure, decent lives for themselves and their families’,⁷ is a brutal and frightening thing. The presumption behind this observation, however, is that the guards sit at the border and that they and their guns face outwards. The truth of the matter is very different: the guns face inwards more often than they face out, and the guards are to be found not merely well within the boundaries of the state but in every part of society.⁸ As we have tried to erect a fortress, so have we managed to build a prison. We have become used to living under surveillance, just as we are also getting used to monitoring each other in a panopticon⁹ of the people. Whether or not we fully realize it, we are no longer at ease, and rely upon a policy and a system that threatens rather than secures our freedom. For some, it might mean living in fear, even as for others it means becoming complicit in a system of policing that contributes to this outcome.

The point of immigration controls is not simply to prevent entry into a state’s territory, or to limit the numbers that come in, but to determine who may enter—and to restrict what people who enter may do. Few countries wish to reduce the volume of cross-border traffic, if only because most want to encourage tourism or to attract business.¹⁰ In 2013, 69.8 million people entered the US as visitors, while more than 30 million entered the UK.¹¹ If citizens and residents are included, the numbers crossing American and British borders are even greater. While concerted efforts are indeed made to prevent people entering countries undetected by government authorities, the greater concern of governments is what those coming across the border do once ‘inside’. Their worry is that they will seek employment, or enrol in a school or university to study, or try to reside for an indeterminate period of time, or marry, or set up businesses, or engage in any number of otherwise legal activities.¹² The problem is that visitors arriving in such large numbers cannot easily be monitored, and if they seek to work or remain for longer than permitted there is little authorities can do to keep track of their behaviour. This problem is exacerbated by the fact that citizens and residents are all too ready to cooperate with outsiders by hiring them, teaching them, buying their wares, and generally helping them to stay—either because they wish to take advantage of cheaper or more skilled labour some visitors can provide, or because they want to swell the ranks of their own groups with people of similar background, or because they have something to sell, or because they like their new-found friends, or because they fall in love. If visitors are to be kept from breaching the conditions of entry, it becomes necessary to monitor the behaviour of citizens and residents. For the restrictions under which visitors operate are largely restrictions on how they may cooperate with citizens and residents. If citizens and residents were disinclined to associate or cooperate with outsiders, the problem would never arise. Yet the propensity to truck and barter, and to collaborate in various (questionable as well as innocent) ways, is a deep feature of our nature, and foreigners will rarely find themselves welcome nowhere.

The only feasible way of monitoring and controlling would-be immigrants is to monitor and control the local population. It will be necessary to forbid among consenting adults not only capitalist acts, but also socialist, Christian, and more generally human ones—if one of those adults is a foreigner. Those in breach of laws forbidding such acts must be penalized—in the case of foreigners (and all too often, as we shall see, citizens) usually by deportation and the denial of any liberty to re-enter the country in the future—or punished, by fines, the rescinding of rights and privileges, or imprisonment.¹³ Yet it is not just sins of commission that will attract the ire of the authorities. Citizens and residents will be expected to be vigilant in ensuring that they do not cooperate or associate inadvertently with foreigners—and to keep records to demonstrate that commitment. Employers will have to monitor their employees, teachers their students, international carriers their passengers, parents their nannies, doctors their patients, and Transportation Security Administration agents their fellow citizens. One nation under surveillance, its liberty diminished through unrelenting vigilance.

Now of course it remains to be established that the condition I am describing is one that should be cause for concern, let alone alarm. Every society places some restrictions on the freedom of its citizens and its residents, as well as on the movement and conduct of visitors. The question, it will be argued, is not whether there are restrictions in place but what limitations on freedom are warranted. And that is indeed the issue. The point of this book is to say that the loss of freedom is more significant than has been appreciated, and that the restrictions that make for that loss are not warranted. The gains, if they are in fact gains, are negligible, but the price is high. Immigration controls, more than many other instruments of governance, encourage the regulation of private and commercial life, the monitoring of social institutions—from schools and universities to professional organizations—and, at worst, the militarization of parts of society. So deeply can they intrude into the relations among people that make for civil life that they have the capacity to compromise a society’s legal institutions as well as inflict serious harm on private citizens, their families and their communities. Unchecked, they encourage the replacement of the rule of law by regulations, of politics by police.

The Apotheosis of Nationality

This brings us to a larger thesis that lies at the heart of this work. From the perspective of freedom, the root of the problem is a certain way of thinking about society, and the relationship between society and its inhabitants. Among political theorists, no less than among the rulers, civil servants, activists, and commentators who make up the political elite, society is imagined to be made up of members. That is to say, it is imagined that a society is some kind of unit comprised largely of people who belong together in some way, and whose belonging entitles them to determine who may or may not become a part of that unit, or indeed even enter the geographical space or territory it occupies. (The ambiguity in meaning of the word ‘belong’ ought not to go unremarked. People may wish to belong with others in their countries, but often states hold that their citizens belong to them whether or not those citizens wish it.¹⁴) The world is divided into territorial units occupied by members who have the right collectively to determine the participation or involvement in, and the membership, the character, and the future of, their particular units.

Yet the world was not always so divided,¹⁵ and even today, societies are not made up entirely of members. They are made up of people: individuals, groups, and communities who pursue various ends or goals or purposes, most of which are independent of, or have no bearing upon, membership of their society. Some societies, such as Qatar, are made up predominantly of non-members: expatriates who have come to work to earn enough to make the move to a new place worthwhile. Others, like Singapore, have large expatriate populations living as residents for as long as their visas permit. The countries of the European Union are filled with non-citizens who have the right to reside in their chosen places because of their European identities, though business enterprises, universities, football clubs, orchestras, churches, and even state bureaucracies, all depend on and draw upon skilled people from all over the world. Even the numerous armies of the United States are sprinkled with soldiers, sailors, and airmen who are not American citizens and who, should they be killed in combat, would die not for their country but for their employer. In many parts of the world, there are entire peoples who remain unaware of their membership of the society that claims them: indigenous people in South America and large parts of Asia who have no idea of, or interest in, their citizen statuses.

In spite of these facts, philosophers and political leaders alike think of the world as (rightly) divided into territorial units that are (rightly) controlled by their members. Thus, Michael Walzer begins his reflections on justice by positing membership as the first issue any society must address,¹⁶ while John Rawls, in describing the ideal society, asserts that it would be one in which immigration would have no place—for in an ideal world, why would anyone move?¹⁷ In looking for employees, players, audiences, buyers, sellers, advisors, friends, lovers or computer gamers, people do not ask first, or even at all, about membership. Why then should political organization, and philosophical reflection on political society, begin with the premise that membership—political membership—is what matters, and matters above all else?

The thought running through this book is that membership is an ideal that is not only overrated but also dangerous from the perspective of freedom. It is at odds with the idea of people living together freely, for it subordinates that freedom to an altogether different ideal—one that elevates conformity and control over other, freer, ways of being. In the end, if we are to live freely, we must be able to relate to one another not as members but as humans. The point of immigration control is to separate us into members and interlopers, dividing us into groups of those whose legitimate place in a territory is beyond question and others who enjoy what entitlements they have as a matter of sufferance, and at the pleasure of the established residents. This is a bad thing not only for those whose status is uncertain but also for those who enjoy the benefits of membership, for in the end they too will have to sacrifice a portion of their freedom—even as they are led to regard as less than their equals those outsiders they are taught to see differently. Learning to be free means learning to live with others as equals, for without equality, freedom is nothing more than an advantage of power.

The general thesis of this book, then, is that immigration controls endanger freedom, for they threaten the freedom of residents and would-be immigrants alike. Immigration controls do so by transforming society into one in which control, and therefore the limiting of freedom, becomes necessary in order to preserve very different ideals. Those ideals, in the end, serve not so much human purposes as the ends or goals of a very different construction: an abstract entity whose interests will occlude and eventually subordinate the interests of the people it pretends to protect. That entity is the nation state. This work, in the end, also offers a critique of the ideal of nationality.

The Structure of the Book

This work is divided into two parts. The first, comprising chapters 1 to 4, elaborates and refines the book’s thesis by considering the nature of immigration, putting the case for being wary of immigration controls. Accordingly, chapter 2 begins with an account of the nature of immigration, and of what it might mean for borders to be open. Chapter 3 then presents an account of the ways in which attempts to control immigration pose a threat to the free society by increasing the extent to which individuals, groups, and communities are subject to surveillance, restriction, and sanction by the state, by its agents, and eventually, by each other. Chapter 4 turns to consider how this development undermines the institutions of a free society by looking at what it means for equality and the rule of law. The enforcement of immigration controls invariably requires the extension of arbitrary power, but also has a more deeply corrupting effect on social and political institutions generally, as must any policy whose purpose is to determine the shape and character of society as a whole. The elite will come to tyrannize over the majority until it brings the majority to tyrannize over itself.

The second part of the book asks whether this price is worth paying, for there are, after all, many advocates of immigration controls who think that such restrictions on freedom have important benefits. There are three main arguments that deserve serious examination: that immigration controls are economically beneficial, that they are necessary to preserve cultural integrity, and that they are warranted in the name of political self-determination. Chapter 5 takes up the arguments from economy, chapter 6 those from culture, and chapter 7 considers the political case for immigration controls in the name of the self-determination of the state. The purpose of each of these chapters is to show that the case for controls is without merit, for neither economics, nor culture, nor politics provide reasons for limiting the freedom of anyone, and certainly not of our fellow residents and citizens.

The conclusion of this book in chapter 8 brings us back to the fundamental moral and philosophical concerns that have prompted its writing. What, it asks, is a free society? And how do people in a free society relate to one another? The answer it offers is that such a society is one in which the spirit of liberality is at work, for the people are not dominated by a system but at ease in their relations with their fellows. Such a society, it concludes, can only be an open society. What this book offers then, along with a critique of nationality, is a theory of freedom.

2

Immigration

Immigrant, n. An unenlightened person who thinks one country better than another.

—AMBROSE BIERCE, THE DEVIL’S DICTIONARY

In the popular imagination, immigration control is border control. This is evident in public discourse and this understanding is reinforced by political rhetoric and public policy, whether it is policy put into effect by governments or proposed by parties contending for power. The UK Border Agency, the US Border Patrol, and the Australian Border Force are just three examples of government agencies whose names suggest that immigration control is about policing a nation’s borders. Even among political philosophers, discussion of immigration tends to begin with the assumption that the issue at stake is the claims of would-be immigrants against the rights or interests or natives or nationals: does one group have a claim to move freely, or does the other have a right to exclude? Yet further reflection suggests that immigration control begins not at the border, or even beyond the borders (where it extends, as we shall see), but with the definitions of immigration and immigrant—and so, by implication, of the notions of native and national. The first step in the exercise of control is to determine who is to be subject to control, and in the case of immigration it means establishing who is a native and who is a foreigner. One way of controlling the movement of people is by establishing through definition the number and type of people who need no permission to travel or to enter a territory or to exercise a variety of rights that are denied to others. Immigration control begins not with walls or fences but with classification.

Consider the example of Freddie Mercury, the lead singer of Queen, who was born Farokh Bulsara in Zanzibar (then a British protectorate) in 1946 to Parsi parents who had moved there from India. At the time of his birth he held no citizenship but was simply a British subject, until the British Nationality Act of 1948 created the status of ‘Citizen of the United Kingdom and Colonies’ (CUKC). There was no difference between the rights of CUKCs and other British subjects, and when the future rock star and his parents moved to Britain in 1964 it was as persons with the right to enter and live in the United Kingdom. Before the 1948 act, all British subjects in principle enjoyed freedom of movement and the right of abode within the empire—though in practice they enjoyed the right to move only to Britain and not to other countries such as Australia and New Zealand, which imposed their own immigration controls.¹ The earlier British Nationality and Status of Aliens Act of 1914 (which followed the 1911 Imperial Conference) had postulated that there was an equality of citizenship across the whole of the British Empire—without regard to race, ethnicity or religion. This meant that at the empire’s height (around 1922) about 458 million people—a quarter of the world’s population—shared a common nationality. Indeed, the figure here is a conservative one. According to Enoch Powell, ‘by the end of the Second World War there were in the world some eight hundred million persons born outside the United Kingdom but endowed in the United Kingdom with all the rights of British subjects’. He added: ‘In respect of British subjects … there neither was nor could be an immigration policy. All possessed under United Kingdom law the same unqualified right of entry and domicile.’²

But anxiety about the number of people from the Commonwealth moving to Britain led to the revision of British nationality law, which gradually restricted the freedom of British subjects outside Britain itself to move to the UK. The Immigration Act 1971 effectively divided CUKCs into two groups, distinguishing those who did from those who did not have the right of abode in the UK. By 1983 six different tiers of nationality had been created under the British Nationality Act 1981, and Commonwealth citizens ceased to be recognized as British subjects. Over the course of fifty years after the end of the Second World War Britain lost an empire, and millions of people lost a nationality even as they acquired new ones.³ Immigration control was not the only purpose that lay behind these changes, but it was undoubtedly the most important. The more general point of principle to note, however, is that immigration control is not straightforwardly about protecting the interests of nationals from would-be immigrants, for immigration control plays a critical role in the establishment of nationality.

If immigration control begins with the act of defining and classifying persons, any investigation into the question of immigration should properly start by trying to understand what immigration could mean. This will require further investigation of related concepts, including nationality, citizenship, and borders. It is what we turn to now.

The Problem of Definition

Though immigration and border controls are much discussed, definitions of these terms are hard to come by. Perhaps this is because it is assumed that they are words that are easily grasped and widely understood, making close investigation unnecessary. Nonetheless, the notions of immigration and border control deserve more careful conceptual and theoretical scrutiny, for it is far from obvious what (or who) is an immigrant, and what controlling immigration or borders means. Advocates of open borders, no less than the defenders of immigration restrictions, have not given sufficient attention to the question of what makes a border open or closed. Yet understanding the nature of immigration and border controls is vital if the moral and political issues surrounding immigration are to be properly addressed.

One reason why definition is a problem is that these terms do not identify ‘natural kinds’ but are, in fact, moral or normative notions.⁴ An immigrant is not a person with particular characteristics (such as age or sex or race) but someone who is identified as such for reasons that are varied and contested. A border is also not something natural but political, and it is no less difficult to identify—since it too is variable and often contested. Immigration is not the movement of a natural kind (by an immigrant, or a person who becomes an immigrant by moving) across another fixed or natural physical entity or space, but the assuming or acquiring of a new status, or a new set of rights, or a new identity, by persons who may or may not move to do so.

Another reason the definitional question is complicated is that immigration and political borders are relatively recent phenomena. Human movement may be as old as humanity itself: there have been migrations of people stretching back to prehistoric times, and such movements continue even now, as changing physical landscapes, economic transformations, and natural and human-caused disasters prompt people to leave their homes for distant alternatives. Indeed, we are just beginning to appreciate the extent to which population movement has been a natural feature of life in many parts of the world, and was even before the advent of industrial society.⁵ But migration is not immigration, for migration is about demography, while immigration is about politics. For immigration to become possible there must be political boundaries. More than that, there must be political agents (governments) who are capable of determining the location of these boundaries, who possess the technology and the resources to police their borders, and who are also sufficiently interested in monitoring both the movement of people across them and the behaviour of people within. Yet it was not until the rise of Napoleon that any ruler took the trouble to locate a country’s borders with precision;⁶ not until the First World War that serious efforts were made to control the movement of people between countries;⁷ and not until the 1960s that the most prosperous countries in the world thought it necessary to distinguish legal from illegal migration.⁸ Understanding the nature of immigration requires understanding the nature and development of the modern state. To date, comparatively little effort has been expended to try to understand these terms as interdependent notions.⁹

There is, however, a further aspect to this that has gone unremarked. Just as the term immigrant does not identify a natural kind, neither do the words ‘native’ or ‘national’. What exactly is a native? More particularly, can an immigrant become a native or a national? (Personal experience tells me it is perfectly feasible.¹⁰) If such a transformation is possible, what does that tell us about how we should approach the issue of immigration control, especially if the arguments for control rest on assertions about the importance of protecting the claims and interests of natives over those of immigrants? If present immigrants are potential future natives or nationals, why should their interests be considered differently from those of current natives or nationals? On the other hand, if immigrants can never become natives or nationals, this might have important implications for our understanding of citizenship in a liberal democratic society committed to equality.

Definitions have consequences, though—as we shall see—they are also difficult to settle; but efforts to avoid them carry significant risks. In the matter of immigration control, the risk is that we lapse into incoherence, or fall into the trap of begging the question. If the point of immigration control is to protect the interests of nationals, but the laws governing immigration control do so by themselves defining the difference between immigrants and nationals, then the law cannot readily be defended on the grounds that its purpose is to uphold the claims of nationals when it can, at a stroke, turn an immigrant into a national. It would be entirely question-begging to defend the definition distinguishing national from immigrant on the ground that it serves to protect the interests of nationals.

The aim then of this chapter is, in the first instance, to offer an account of the meaning of immigration. I begin, in the section that follows, with the concepts of immigrant, native and national, before turning to the problem of understanding the nature of borders and border control—and, ultimately, of immigration and immigration control.

Immigrants and Natives

According to the United Nations Department of Economic and Social Affairs, 272 million people or 3.5 per cent of the world’s population lived outside of their country of origin in 2019,¹¹ representing more than a doubling of the numbers over the past twenty years.¹² Many, and possibly most, of these people are immigrants; but whether or not they are is hardly a straightforward matter.¹³ Merely residing in a foreign country does not make one an immigrant, any more than does visiting a country as a tourist or a sportswoman or a guest lecturer or a delegate to a convention. Yet neither does one need to become (or even intend to become) a citizen of a country to which one has moved to be described as an immigrant. Equally, even a citizen might be re-classified as an immigrant if laws change, a border is moved, or rules once ignored are newly enforced.¹⁴

Consider the case of Mr Sikhou Camara, a Senegalese who was naturalized as a citizen of France in Rouen in 1966 after leaving the French colony for Bordeaux in the early 1960s. Twenty years later, on applying for citizenship for his wife, he was informed that she was ineligible because of an error in the naturalization process, which had seen him admitted to citizenship status at 20 rather than at the required legal age of 21. In 2012 Mr Camara was informed that he himself no longer held French citizenship and was officially an immigrant, though he would be granted a temporary residence permit.¹⁵ This case is not a particularly unusual one: re-classifications of immigrant status are common. What it serves to highlight, however, is the problematic nature of any attempt to establish what or who is an immigrant. At what point did Sikhou Camara become an immigrant? Was it at the moment he arrived in Bordeaux? Or when he formulated an intention to stay in France indefinitely? Or when he decided to apply for naturalization as a French citizen? Or has he been an immigrant for his entire adult life? Do those who choose to live as permanent residents without taking up citizenship¹⁶ remain immigrants—and more so than, say, people who have come only recently but take up citizenship at the first opportunity? When does one cease to be an immigrant?

Tempting though it is to say that immigration simply ‘is the movement of a person or persons from one state into another for the purpose of temporary or permanent settlement’,¹⁷ the reality is more complicated, for neither political authorities nor scholars and advocates define immigration in the same way. There is no consensus on the definition of ‘migrant’ or the meaning of ‘immigration’. In the UK, for example, there is no category or status of ‘migrant’ or ‘immigrant’ in law, only a distinction between those who do and those who do not have a ‘right of abode’ in Britain.¹⁸ For some time, those who lacked the right of abode were regarded as more or less the same as ‘Persons Subject to Immigration Control’—which is to say, persons who needed permission to enter or remain in the UK. Yet this implies that the large numbers of EU nationals who moved to Britain before Brexit, without being subject to restrictions on movement and already possessing the right of abode, were not immigrants.

There are various other ways of defining immigrants and immigration, but all are problematic to some degree. Migrants might be (and commonly are) defined as those who are foreign-born. The problem with relying on country of birth as the defining characteristic of migrants is that many citizens are born abroad, just as children born to parents temporarily resident in a country may not be entitled to citizenship, or even long-term residence, in their country of birth. Alternatively, migrants could be defined by nationality, taking immigrants to be those who reside outside their countries of citizenship.¹⁹ Here several complications might arise. Many people who hold more than one nationality could move between some countries without ever immigrating. More problematically, people who were moved as children might find themselves in possession of a nationality of which they are unaware or to which they have no practical connection. There are numerous cases of adults classified as immigrants, despite having no memory of their official homelands, because they were born abroad and brought into the countries in which they were raised by parents who were not properly documented.²⁰ The children of fully documented foreign-born parents (or grandparents) might find themselves classified as foreign nationals in their countries of birth if their parents were never entitled to citizenship. In Malaya (later Malaysia), Indians, Sri Lankans, and Chinese residents were granted citizenship on the country’s becoming independent on 31 August 1957. Until then, tens of thousands of people had no citizenship status in the country in which they were born and raised to adulthood.²¹

Even if the nationality issue were settled, however, there is a further complication arising out of the length of stay of any putative migrant. How long does one have to stay in order to be considered a migrant rather than a visitor? According to the UN, a ‘long-term international immigrant’ is ‘a person who moves to a country other than that of his or her usual residence for a period of at least a year … so that the country of destination effectively becomes his or her new country of usual residence’.²² In the UK the Office of National Statistics (ONS) uses this definition to measure migration flows, though it is not a universally recognized definition.²³ Indeed, within the UN itself, the international organization UNESCO offers a different understanding of migrant as ‘any person who lives temporarily or permanently in a country where he or she was not born, and has acquired some significant social ties to this country’, while also noting that ‘this may be too narrow a definition when considering that, according to some states’ policies, a person can be considered as a migrant even when s/he is born in the country’.²⁴ The problem with focusing on length of stay in the first instance is that in countries like the UK it is difficult to tell how long any individual will stay or has stayed when there is no mechanism for recording departures from the country—and no reliable way of assessing how many who report that they will stay for a particular length of time will remain longer or depart sooner than they indicated.

Migration data is counted in two ways following standard accounting principles: stocks and flows. It is difficult enough to establish the stock of immigrants given the problem of determining who is to count in the first place, though in principle it is a straightforward matter of adding up the numbers residing in a country at a given point in time. Measuring flows is more difficult still since the point is to calculate the rate of human movement over time.²⁵ Every year many people who move for specific purposes find their aims and interests changed by experience: would-be immigrants return home; sojourners or temporary workers settle for longer than they anticipated; some students may reside in a country for several years yet leave as soon as their degrees are completed, while others come for a semester abroad and find themselves wanting to remain indefinitely for personal or professional reasons. People become immigrants, but not always by design, sometimes unexpectedly; and they may also on occasion find themselves uncertain not only of their status but also of their plans.

Immigration is one aspect of the movement of people between states (just as movement is one aspect of immigration), but it is difficult to establish with precision who is an immigrant. In the end, governments, international organizations, and other interested agencies have adopted definitions of one sort or another in order to establish some kind of basis for policy. If the rights of immigrants are to be distinguished from those of visitors or residents or citizens, immigrants must be identified. If immigration targets are to be met, some measure must be found to establish how many people are coming and going. More particularly, if immigration is to be controlled, there needs to be some understanding of the subject of control. If precision and clarity cannot be achieved, policy can still be made and pursued, but the